W.D.Okla: Def bears burden of proving “private search” was by government actor and did; suppressed

Defendant has sufficient interest in the business from which a thumb drive with data was taken and turned over to ICE officers at the U.S. Embassy in Panama. (The court acknowledges that it’s not “standing,” per se, but it continues to use the word.) On the question of private search, the court can’t find a Tenth Circuit case on it, but the Seventh and Ninth put it on defendant, so that’s what the court does. Then it finds that the defendant satisfied his burden of proof that the guy taking the thumb drive was a government actor because of government encouragement. [On the burden of proof, I disagree. See note at end.] United States v. King, 2015 U.S. Dist. LEXIS 187174, 2015 WL 12852051 (W.D. Okla. Jan. 21, 2015):

3. Lack of a Search Warrant and Suppression

The limitations imposed by the Fourth Amendment apply to Mr. Stewart’s conduct as a state actor. See, Lugar v. Edmondson Oil Co., 457 US. 922, 937 (1982) (party charged with the deprivation must be a person who may fairly be said to be a state actor; this may be because he is state official or because his conduct is otherwise chargeable to the state); Sloane v. United States, 47 F.2d 889 (10th Cir. 1931) (“[An officer] must not be permitted to do indirectly that which he cannot do directly, and thus circumvent the provisions of the Fourth Amendment against unreasonable search and seizures.”).

The explicit premise of defendant’s motion is that the Fourth Amendment protects Mr. King, as a United States citizen, from warrantless search and seizure, and that the Fourth Amendment does so despite the fact that the search and seizure occurred in Panama. The motion contends that because there was no warrant, fourth amendment standards were violated, with the result that the fruits of the search and seizure must be suppressed. The government argues only that Mr. King has no standing and that there was no government actor. Having rejected the government’s arguments, what remains is a warrantless search and seizure in violation of Mr. King’s rights under the Fourth Amendment, along with the incumbent exclusionary rule. See, e.g., United States v. Delaplane, 778 F.2d 570, 573 (10th Cir. 1985) (stating the exclusionary rule applies where American agents participate in a foreign search or where foreign agents act as agents for American counterparts, although those requirements were not met in that case). The motion will be granted.

Because this is a warrantless search, one would assume that the burden should be on the government, as it is in all warrantless searches. Nevertheless, the court finds the evidence in favor of the defendant, essentially making a government appeal far more difficult. [King was later convicted of some offense. The forfeiture case is United States v. King, 2017 WL 895748 (W.D. Okla. March 6, 2017).]

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).

"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]

“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew

"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)